Citation Nr: 0314898
Decision Date: 07/07/03 Archive Date: 07/10/03
DOCKET NO. 00-16 301A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for residuals of a left
knee injury.
ATTORNEY FOR THE BOARD
Raymond F. Ferner, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a June 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, that denied the benefit sought on
appeal. The veteran, who had active service from July 1983
to August 1983, appealed that decision to the BVA, and the
case was referred to the Board for appellate review.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. A physical examination performed in November 1982 in
connection with the veteran's entry into service showed no
defects or abnormalities of the left knee.
3. The veteran sustained a twisting injury of his left knee
during service physical training, and he is currently shown
to have residuals of that injury.
CONCLUSION OF LAW
Residuals of a left knee injury, characterized as a chronic
tear of the left anterior cruciate ligament, were incurred
during active service. 38 U.S.C.A. §§ 1131, 1132, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.304 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board is required to address the
Veterans' Claims Assistance Act of 2000 (VCAA) that became
law in November 2000. The VCAA applies to all pending claims
for VA benefits and provides, among other things, that the VA
shall make reasonable efforts to notify a claimant of the
relevant evidence necessary to substantiate a claim for
benefits under laws administered by the VA. The VCAA also
requires the VA to assist a claimant in obtaining that
evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R.
§ 3.159 (2002).
First, the VA has a duty under the VCAA to notify a claimant
and any representative of information and evidence needed to
substantiate and complete a claim. Collectively, the rating
decision, as well as the Statement of the Case issued in
connection with the veteran's appeal have notified him of the
evidence considered, the pertinent laws and regulations and
the reasons his claim was denied. In addition, a letter to
the veteran dated in March 2001 specifically informed the
veteran of the VCAA, including the division of
responsibilities between the VA and the veteran in obtaining
evidence. Under these circumstances, the Board finds that
the notification requirements of the VCAA have been
satisfied. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Second, the VA has a duty to assist a claimant in obtaining
evidence necessary to substantiate a claim. In this regard,
the veteran's service medical records are associated with the
claims file. In addition, private medical records have been
obtained, and pursuant to the Board's request, the veteran
was afforded a VA examination. The veteran has not made the
Board aware of any additional evidence that needs to be
obtained in order to fairly decide his claim, and in fact, in
a statement from the veteran dated in January 2003, the
veteran indicated that he had provided all information and
records he had. Therefore, the Board finds that all relevant
evidence necessary for an equitable disposition of the
veteran's appeal has been obtained. The Board would also
point out that, since this decision represents a complete
grant of the benefits sought on appeal, any deficiencies in
the notice and assistance requirements of the VCAA are
effectively moot. Accordingly, the case is ready for
appellate review.
The veteran's service medical records include a report of a
physical examination performed in November 1982 in connection
with the veteran's entry into service. That examination
contained no pertinent defects or abnormalities. A service
medical record dated on July 22, 1983, approximately two
weeks after the veteran entered service shows the veteran was
seen with complaints of left knee pain of three days'
duration. The veteran reported that he had twisted the knee
during physical training. The diagnosis following the
examination was LCL [lateral collateral ligament] strain. A
service medical record dated five days later noted a three-
day history of left knee pain and a prior history of a
twisting injury to the left knee 2 to 3 months prior to
enlistment that was not treated by a physician. The
assessment following the examination was bilateral
chondromalacia, left greater than right, and posterior
cruciate strain.
A service medical record dated July 29th records that the
veteran reported that he ran into an automobile sustaining a
twisting injury of the left knee four months ago with
persistent pain since that time. The impression following
the examination was possible internal derangement, but with
essentially normal examination, must suspect secondary gains.
The veteran was referred for an orthopedic consultation. An
orthopedic consultation performed in early August 1983
concluded with an impression of probable
chondromalacia/osteochondral fracture secondary to trauma
which existed prior to enlistment, aggravated by exercise and
physical training. The veteran was recommended for
administrative separation. A Medical Board Report concluded
that the veteran had chondromalacia of the left patella that
existed prior to enlistment. It was concluded that the
veteran did not meet the minimum standards for enlistment or
induction and that he did not meet those standards at the
time of his entry into service.
A statement dated in May 2000 from Robert L. Buzard, M.D.,
related that he first saw the veteran in May 2000 at which
time the veteran reported that he injured his left knee when
he was in an accident while he was serving in the Navy in
San Diego in 1983. The veteran reported that he had
continued to experience left knee pain since that time. The
veteran underwent an MRI that showed a tear of the posterior
horn of the medial meniscus and a torn anterior cruciate
ligament.
A report of a VA examination performed in May 2003 reflects
that the examiner reviewed all of the pertinent medical
records contained in the veteran's claims file. The examiner
noted the veteran's documented history of sustaining a
twisting injury to his left knee and the history of the knee
injury prior to service. The veteran reiterated that he
twisted his knee when running during basic training and
denied seeing a physician for any medical evaluation or
treatment of his left knee prior to service. The veteran
indicated that he had no injuries to his left knee since he
left service. The examiner indicated that a review of the
medical records revealed that the veteran did have some
complaints of left knee pain and buckling while on active
duty, although these complaints could not be substantiated.
The examiner noted that the veteran was discharged from
service because of chondromalacia, which was at best, "a
wastebasket term." The final impression was that the veteran
had a chronic tear of the left anterior cruciate ligament,
which in the opinion of the examiner was most likely the
result of injuries he sustained while on active duty.
Applicable law provides that service connection will be
granted if it is shown that a veteran suffers from a
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in the line
of duty, in the active military, naval or air service.
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection
may also be granted for any disease diagnosed after
discharge, when all of the evidence, including that pertinent
to service, establishes that a disease was incurred in
service.
Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
pre-service disability underwent an increase in severity
during service. 38 C.F.R. § 3.306(b) (2002). A veteran who
served during a period of war or during peacetime service
after December 31, 1946 is presumed in sound condition except
for defects noted when examined and accepted for service.
Clear and unmistakable evidence that the disability
manifested in service existed before service will rebut the
presumption. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). The
burden of proof is on the government to rebut the presumption
of sound condition upon induction by showing that the
disorder existed prior to service; if the government meets
this requirement, it must then show that the condition was
not aggravated in service. Kinnaman v. Principi, 4 Vet. App.
20, 27 (1993). In deciding a claim based on aggravation,
after having determined the presence of a preexisting
condition, the Board must first determine whether there has
been any measured worsening of the disability during service
and then whether this constitutes an increase in disability.
See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v.
Brown, 5 Vet. App. 155, 163 (1993). Temporary or
intermittent flare-ups of the preexisting condition during
service are not sufficient to be considered aggravation
unless the underlying condition, as contrasted to symptoms,
has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48
(1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991).
Aggravation may not be conceded where the disability
underwent no increase in severity during service on the basis
of all the evidence of record pertaining to the
manifestations of the disability prior to, during and
subsequent to service. 38 C.F.R. § 3.306(b).
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding service
origin such doubt may be resolved in favor of the claimant.
By reasonable doubt is meant one which exists because of an
approximate balance of positive and negative evidence which
does not satisfactorily prove or disprove the claim.
38 C.F.R. § 3.102.
Based on this record, the Board finds that service connection
is warranted for residuals of a left knee injury,
specifically a tear of the left anterior cruciate ligament.
Initially, the Board notes that the RO denied this claim on
the basis that the veteran's left knee disorder preexisted
his military service and was not aggravated therein. The
Board, however, finds that the record does not contain clear
and unmistakable evidence sufficient to rebut the presumption
that the veteran was in sound condition on entrance into
service. The veteran's November 1982 entrance examination
was negative for any pertinent left knee abnormality, and the
Board does not find the veteran's later somewhat vague report
that he had bumped his knee prior to service and sustained an
injury for which medical treatment was not required to be the
type of evidence that would rebut the presumption of
soundness in this case. Moreover, the Board observes that
the veteran was initially seen during service for complaints
of a twisting-type injury to his left knee sustained in
service that was initially diagnosed as a lateral collateral
ligament injury. After relating that he had sustained
another injury prior to service, service physicians concluded
that the veteran had entered service with a preexisting left
knee injury that had not been aggravated during service.
However, a recent VA examination and review of the medical
records resulted in an opinion that the veteran's current
left knee disorder, diagnosed as a chronic tear of the left
anterior cruciate ligament, was related to the injury he
sustained during service.
The Board does acknowledge that the examiner referred to the
veteran having sustained "injuries" during service, whereas
the record reflects that the veteran only sustained a single
injury during service, as well as a single injury prior to
service. Nevertheless, the opinion related was that the
veteran's current diagnosis was related to the service injury
and this impression and opinion was rendered after reviewing
pertinent record which clearly reflect the examiner's
understanding that the veteran sustained a single injury
prior to service and a single injury during service. This is
the only medical opinion of record regarding the etiology of
the veteran's current left knee disorder. Accordingly,
service connection for residuals of a left knee injury
characterized as a chronic tear of the left anterior cruciate
ligament is established.
ORDER
Service connection for residuals of a left knee injury,
characterized as a chronic tear of the left anterior cruciate
ligament, is granted.
____________________________________________
S. L. KENNEDY
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.